State v. Wine
Annotate this CaseAppellant was indicted on one count of rape. After a jury trial, Appellant was found not guilty of rape and not guilty of sexual battery but guilty of the lesser included offense of gross sexual imposition. The court of appeals remanded the case, holding (1) the trial court did not abuse its discretion in instructing the jury on the lesser included offense of gross sexual imposition over Appellant’s objection; and (2) there was insufficient evidence to support a conviction for gross sexual imposition but that there was sufficient evidence to prove the lesser included offense of sexual imposition. Upon remand, the trial court found that Appellant was guilty of sexual imposition. Appellant appealed, arguing that, as a matter of trial strategy, a defendant has a right to present an “all or nothing defense” and refuse any lesser-included offenses instructions. The Supreme Court affirmed, holding that a defendant does not have such a trial, and the trial court, after reviewing the evidence, must give an instruction on a lesser included offense if its is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense.
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